Gardner v. Lovegren

• Decision Date: 03 February 1902
• Citation: 67 P. 615,27 Wash. 356
• Parties: GARDNER v. LOVERGREN et al.
• Court: Washington Supreme Court

67 P. 615

27 Wash. 356

GARDNER v. LOVERGREN et al.

Supreme Court of Washington

February 3, 1902

Appeal from superior court, King county; W. R. Bell, Judge.

Action by Charles Gardner against August Lovegren and D. J. Strait copartners as D. J. Strait & Co. Judgment for plaintiff granting insufficient relief; and from an order granting him a new trial, defendants appeal. Reversed.

Shank &amp Smith, for appellants.

James McNeny, for respondent.

DUNBAR J.

This appeal is from an order granting respondent's motion for a new trial. The action was brought to recover treble damages for trespass, under sections 5656, 5657, Ballinger's Ann. Codes & St. The complaint alleged the ownership of certain land in respondent; that the appellants knowingly and willfully entered upon the land, and knowingly, wrongfully, and willfully cut down and converted into shingle bolts and removed therefrom certain cedar trees, the total value of which was $700; that, by reason of such willful and unlawful entry, respondent was damaged in the sum of $700, and was entitled to recover treble the amount of damages; and judgment was demanded accordingly. In their answer the appellants admitted the ownership of the land described by the respondent in his complaint, and admitted that they had entered thereon and cut into shingle bolts the trees mentioned, but denied that they knowingly and willfully entered upon said land, and that the trees so cut and removed were of a greater value than $150, and tendered into court this sum, plus $15, to cover the costs which had accrued up to the time of making answer. The appellants alleged that they were the owners of adjoining land, and that they were misinformed and mistaken as to the boundary of respondent's land; that at all times when they were cutting said trees they believed they were upon their own land; and that, as soon as they had any intimation that they were probably upon respondent's land, they caused a survey to be made, which disclosed the fact that they were cutting over the line, whereupon they ceased work at once, and left the bolts which they had cut upon the respondent's land, where the said bolts still remain. At the close of the case the jury returned a verdict in favor of respondent for $216, and found the trespass unintentional, and that the appellants had probable cause to believe that the land was their own. The respondent moved for a new trial, assigning several grounds, but three of which, it is stipulated, are for consideration on this appeal. The grounds upon which the respondent relies are: (1) Error of the court in giving instruction No. 5, which instruction reads as follows: 'The court further instructs you that you will be required, in addition to finding the amount of plaintiff's damages, to determine whether the defendants' trespass was casual or involuntary, or whether the defendants had probable cause to believe that the land upon which the trees stood was their own. You are instructed that if you find that the defendants went upon the plaintiff's land in good faith, in the honest and sincere belief that the land was their own, or that their going upon the plaintiff's land was not marked by any spirit of wantonness, willfulness, or evil design, then you must find that the defendants' action was not willful. In other words, before you can determine that the defendants' action was willful, the preponderance of the testimony must satisfy you that the trespass was not only against the consent of the plaintiff, but that it was attended by circumstances of bad faith and intentional wrong on the part of the said defendants. If, however, you find that the trespass was knowingly and intentionally committed by the said defendants, D. J. Strait & Co., or if you find that the defendants, by the exercise of ordinary care and prudence, could have ascertained that they were trespassing upon the land of the plaintiff, then you will find that their action was willful.' (2) Error of the court in permitting appellants' counsel, over the objection and exception of the respondent, to argue as follows: 'The laws of the state are such that if you find that the trespass of D. J. Strait & Co. upon the lands of the plaintiff herein was not casual or involuntary, or that they did not have probable cause to believe that the land on which they cut this timber was their own, then the court will treble whatever actual damage you may find to have been suffered by the plaintiff. From the facts as disclosed, I cannot see how it is possible for any one to say other than Strait & Co. supposed all the time that they were upon their own land.' (3) Error of the court in submitting to the jury the form of verdict containing the following question as a whole, instead of submitting the same in two questions, and so numbering them: 'Was the trespass casual or involuntary, or did the defendants have probable cause to believe that the land on which the trespass was committed was their own?'

We think that the instruction complained of by the respondent was properly given, and that therefore the court erred in granting a new trial on the theory that the instruction was wrong. Section 5656, Ballinger's Ann. Codes & St provides that whenever any person shall cut down, girdle, or otherwise injure or carry off any tree, timber, or shrub on the land of another person, or on the street or highway in front of any person's house, etc., without lawful authority, in an action by such person, etc., against the person doing such trespasses or any of them, if judgment be given for the plaintiff it shall be given for treble the amount of damages claimed or assessed therefor, as the case may be. Section 5657 provides that if, upon trial of such action, it shall appear that the trespass was casual or involuntary, or that the defendant had probable cause to...